keeping the dog at bay

Keeping the Dog at BayAuthor(s): Terrence J. LavinSource: Litigation, Vol. 17, No. 4 (Summer 1991), pp. 36-40Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/29759487 .

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Keeping the Dog at Bay

by Terrence J. Lavin

Although it is often dubbed the poor man's key to the court?

house, the contingency fee could also be aptly described as the careless lawyer's key to the poorhouse. Every lawyer with a contingency fee practice knows that she should stay away from "barking dogs" when selecting cases. As a per? sonal injury attorney who chooses his clients, I can tell you that the problem is bigger than that. It is not the dogs' barking that is cause for worry; the problem is that those

barking dogs often bite, too. As it takes up residence in our

offices, the dog case that merely barked when it walked in the door not only bites but threatens to eat us alive. A personal injury lawyer's fee is contingent upon the

ability to obtain compensation for the client. If you don't get a favorable settlement or verdict for your typically indigent client, your time has been wasted, your financial investment

gone. Even if the attorney-client contract has opened the courthouse door, experience and statistics suggest that the

jury will very often send the plaintiff?and the attorney? back through the door with empty pockets.

The client's disappointment, though real, is tempered with the knowledge that the contingent fee contract has provided a day in court, free of charge. The unsuccessful lawyer gets no such consolation prize. While the client licks emotional wounds and tries to get on with life, the lawyer engages in the time-honored sport of second-guessing that decision to

pursue the case to verdict?a choice that led to hundreds of hours and thousands of dollars down the drain.

Ah, what clarity of vision and sharpness of hearing we

possess when the jury has sent us packing! The entire lawsuit

suddenly flashes before our eyes, and we finally see what should have appeared as a fatal flaw years ago. The meek

whimper we heard when the case came into the office becomes the angry snarl of the beast rampant. An honest

appraisal usually suggests that our perspicacity was obscured by a desire to roll the trial dice and a belief that our

Mr. Lavin is a partner with the law firm of Power, Rogers & Lavin in

Chicago.

superior forensic ability could overcome the case's limitations.

Proper judgment in case acceptance is crucial to a contin?

gency fee lawyer for a variety of economic reasons. The

attorney charges a one-third fee in all cases because a signifi? cant percentage of them will be lost. Charging every client a one-third fee ensures that the attorney will be able to finance the losers with income from the winners. This is especially important because the attorney advances all expenses toward

prosecution of the case, which amounts to an interest-free loan to the client. If the case is lost, this loan becomes bad debt expense.

Although the contingency fee is roundly criticized by the insurance industry, there can be no doubt that it provides egalitarian access to the court and imposes accountability on insurers who might run roughshod over accident victims too

poor to hire a lawyer. On the other hand, smart lawyers will avoid filing frivolous claims that yield no attorney's fee.

Before you get to screening a case, you must generally consider the referring attorney. Probably the biggest drain on a personal injury lawyer's budget is compensation for refer?

ring attorneys. Most states allow an attorney who maintains

equal professional responsibility for a case to receive a refer? ral fee. Referral fees range from 25 percent to 50 percent of the gross fee received from the client. The referring attorney typically does not share the burden of financing the case but invests faith in the lawyer who will try the case. The faith is rewarded with a significant portion of the fee for having the

good sense to refer the case to a specialist. A successful trial

lawyer should be the last person to bemoan payment to

referring attorneys, but most of us secretly dream of handling only business off the street or retiring at 45 and becoming a

referring attorney. Who is a referring attorney, and how does a trial lawyer

develop a good working relationship with her? Many refer?

ring attorneys are workers' compensation specialists who handle several hundred cases, with little time left for pursu? ing the endless discovery encountered in personal injury

Litigation Summer 1991 Volume 17 Number 4



practice. They are good sources of trial work because their clients are often injured by the conduct of others.

Although workers' compensation lawyers are a prime source of business, a trial lawyer cannot afford to forget that anyone who sees a lot of clients is a potential referring attorney. Despite the oversaturation of sincere, gray templed, perfectly tanned lawyers hawking their services on

daytime television, most prospective contingency fee clients choose a personal injury trial attorney by speaking with

lawyers they already know.

Where the Referrals Are Rather than flip through the Yellow Pages, seriously in?

jured people who have had pleasant experiences with their

lawyers in other matters will reach for the familiar business card when it is time to explore the possibility of a lawsuit.

Lawyers who handle a large volume of real estate and di? vorce cases are a terrific source of business because they are

usually adept at developing the confidence of their clients. Because a lawyer with a potential referral often will attend seminars and bar association workshops, smart contingency fee lawyers try to give speeches as often as possible and to contribute to the local legal periodicals.

Referring lawyers are a discerning lot. They know that

visibility doesn't necessarily mean competence. There is no substitute for experience in settling and trying significant personal injury cases. You have to put some big numbers on the board to publicize your success. Referring lawyers, like insurance claims examiners, know that a case becomes

more valuable if handled by someone with an established trial record. The more cases you win, the more business

you'll get. The relationship of trial lawyer and referring lawyer is

influenced by the nature of the trial lawyer's practice. Many successful contingency fee lawyers ardently believe that a

large-volume practice makes the most economic sense be? cause the smaller, less-complicated cases can regularly be turned over, providing the necessary funds for overhead. This type of practice is also ideal for training young lawyers. There is nothing quite like a series of impossible trials for

curing a young lawyer's ego problem. And handling a large number of files teaches a young lawyer to establish priori? ties. Partners treasure the associate who develops a knack for

settling a case before filing suit, because she has recognized that time spent is not necessarily money earned. Lawyers with a volume practice will accept almost any type of case from an established referring attorney. Other trial attorneys, who like to concentrate on catastrophic injury cases, will

actively discourage referring sources from sending cases with minimal damages or impossible liability.

Beyond the economic reality of fee sharing, the referring attorney relationship may provide significant obstacles to effective case selection. Referring attorneys can be a fickle bunch. Every trial lawyer harbors a fear that her favorite source of business will start sending cases elsewhere unless she accepts the cases that bark loudly when brought in the door. Trying to keep referring attorneys happy causes most trial lawyers to take cases as "loss leaders." This is a concept that works fine for supermarket milk pricing, but it is terrible business for a contingency fee lawyer. To a lawyer, a loss leader is nothing more than a loss. Just the same, she warmly embraces it in hopes that the pot-of-gold case is just over the rainbow.

Some referring attorneys hang on to their slam-dunk cases and farm out the perilous, expensive battles to the

gutsy trial lawyer who will invest his heart, soul, and bank account in an uphill battle. They keep the truck-rear-end

ing-the-father-of-five cases and ship out the cases in which the client crosses the center line and is killed in a collision with a car full of nuns.

Those are the characters you desperately need to avoid. It is hard to find out whether someone is hanging on to his good business and sending out his barking dogs, but the easiest way to avoid being bitten by one of them is to just say no.

Turning down business can actually mean more referrals because a savvy source will know that a trial lawyer with

high standards will have more time to spend on a deserving case. A smart trial lawyer will take pride in managing a small caseload. No referring lawyer (or client, for that matter) wants the case to get lost in the shuffle. This is not to suggest that you need to set up a boutique firm and handle only brain?

damaged baby cases against Osteopathie physicians. Refer?

ring lawyers and clients just need to know that their cases will get proper attention.

Once the case comes to your door, the first rule is to keep sight of what motivates juries to award money to injured people. Jury verdicts are not always based upon the relative

strength of your liability or damage case. In personal injury cases, juries look long and hard at the person involved before deciding whether to compensate.

Let me illustrate with an unfortunate war story. I repre




sented a 21-year-old man seriously injured in a fall from a

motorcycle. The accident happened about 4:00 a.m., and the victim had, indeed, been overserved. He was taken to a

community hospital in a comatose state, prompting a battery of diagnostic tests. Among these, a pelvic X ray was ordered but never performed. My client eventually recovered from his neurological inju?

ries but required a prosthetic hip joint because a fracture/ dislocation was never diagnosed. The pelvic X ray would have disclosed this condition, but the doctors contended that more pressing medical issues mandated its cancellation.

At the initial interview, the client appeared to be a shiftless

cipher with the world's largest chip on his shoulder. I heard the sound of a dog barking but only softly because he seemed to have a good case. This judgment was confirmed when a

preeminent orthopedic surgeon from a top-notch medical school agreed to act as our expert. We were on our way. The

plaintiff could always be cleaned up later. The next major episode of barking came when the plaintiff

gave his deposition. Despite extensive preparation, he fought with the defense lawyers on virtually every question. When he testified about his injuries, he sounded more like a

crybaby than a victim of malpractice. We were, nevertheless, emboldened by the defendant sur?

geons' depositions, for each doctor looked evasive, defen? sive, and incompetent. The case would surely settle for big bucks after the jurors heard from Dr. Big Shot from the Ivy League! Wrong. The doctors dug in their heels and prepared for the usual battle of the experts. Although their expert fought us on the negligence issue, the primary thrust of their defense was their contention that the hip was damaged be?

yond repair in the motorcycle accident. My expert assured me that our client's chances of a successful recovery with

proper treatment were close to 80 percent. I felt undaunted

by the defendants' causation defense.

Sanitizing the Plaintiff I started trying to sanitize the plaintiff. While waiting for

the world's longest case backlog to clear, the plaintiff had

gotten older, meaner, and more interested in distilled spirits. In fact, he looked like a lout. He ignored our repeated re?

quests for moderation in alcohol consumption and showed

up for court malodorous, surly, and unrepentant. His counte?

nance did not prevent the medical part of the case from going smoothly, but the jury apparently got to know the plaintiff pretty well in the week we were putting our case on.

Our client was out in the hallway waiting for his mother to conclude what I hoped was heartrending testimony about her

formerly energetic, fun-loving child who had turned into a

mope after he had lost his hip. The judge told me to "get rid of" my next witness. The moment of truth was approaching!

Would my client hold up under cross-examination? Would he whine? Would he burp and ask for a beer?

The answer to each question was no for a reason that even I had not contemplated: As I had to tell the judge, my client was nowhere to be found. I tried to make light of his absence by joking, "I've been trying to get rid of him for years, and now I can't find him." From the front row of the jury box an elderly juror, who obviously had a dim view of our hero, said, "Look in the women's bathroom." I was not encouraged.

Employing impeccable hindsight, I was able to see that I had erred in my belief that the plaintiff could be buffed up

enough that the jury would be blinded by his surface. I was also foolish to believe that our case was solid on causation. The medical literature may have been favorable to us statisti?

cally, but it provided an avenue for the jury to find in favor of the defendants.

My decision to pursue the case was clouded by a mistaken conclusion that we would reach a reasonable settlement. Do not count on settling; it may not happen. I had ample oppor? tunities to withdraw from the case, but I was driven by a desire to divide a large number by three. This motivation inhibited my ability to appreciate an established fact: Juries

compensate people who appear worthy of compensation; they do not like to see or hear barking dogs in court. Unfair as it seems, jurors are not always significantly influenced by the defendant's liability. The character and integrity of the

plaintiff are of paramount importance to a jury that is being asked to award millions of dollars in damages.

Personal injury attorneys are supposed to be sensitive human beings. I tell myself that is why we occasionally take

impossible cases merely because the plaintiff is a nice per? son. I recently tried a case for a man who was seriously injured in a car wreck. He wrapped his car around a utility pole after falling asleep at the wheel, crossing the center line, and leaving the roadway. His highway misadventures were

preceded by several hours of drinking in a college town 70 miles from his home. This was another "great case" referred

by a lawyer who claimed he wanted to start sending us all his business.

The client came to our office because of his suspicion that earlier repair work by the auto dealer had contributed to the fire that followed the collision. His burn injuries were devas?

tating. By the time he got to our office, he had undergone 15

plastic surgery procedures and endured nearly seven months of hospitalization. We were obviously impressed by the seri? ous nature of his injuries. We committed to investigate the case because the interview revealed the client to be a scrupu? lously honest man. He didn't try to con us into believing that he had had only two beers. He told no tales of phantom cars

chasing him off the road. Instead, he freely admitted that the collision was his fault but said he did not think the car should have burned.

We learned about other indicia of his character in the interview. During his hospitalization, he fell in love with his

physical therapist. She eventually moved hundreds of miles to live with our client. She was a lovely woman whose

qualities of class and compassion, combined with the charac? ter of our client, convinced me that we might win this case if

discovery provided us with a workable theory. It did. After receiving the dealer's records, we learned that

the car had been repaired on at least 20 occasions during the

preceding four years. Six of these repairs were on the fuel

system. An inspection of the charred car by an automobile fire expert revealed that the fire might have started because the mechanic installed a fuel hose that was two feet longer than the original design. The extra length put the hose into contact with the engine manifold, which heats up to 800

degrees. We had a theory. We had a solid client. We were on our

way?until we were surprised by a late revelation that the defense had statements of two nurses who intended to testify that our client was drunk when brought into the emergency room. The medical records were silent on intoxication, and




no other witnesses to his state of sobriety had previously been disclosed. This new development could sound the death knell for our case, gutting our proximate cause theory. The

jury might decide that our client's drunkenness prevented him from escaping the fire. Witness credibility was shaping up as a key element in this

trial. If the jury was convinced by the nurses' testimony and

unpersuaded by the plaintiff's theory, it would return a de? fense verdict in a New York minute. But the Great Protector of Trial Lawyers must have been looking out for us, because the nurses testified in deposition that their opinions were based on SMELL. They claimed, on the basis of the smell of

alcohol, that our client was drunk, even though 65 percent of his body had been consumed by a gasoline fire. After I had heard this preposterous testimony, I soft-pedaled my motion to bar evidence of drinking. This trial would be fought on a fundamental fairness issue: Should the jury send this man out of court or drastically reduce his recovery on the basis of this flimsy evidence?

The Necessary Zip The defense lawyers were so interested in their effort to

prove intoxication that they did not prepare the nurses on any medical issues. Direct examination was all booze, booze, booze. On cross-examination, one of the nurses gave us the

zip our case desperately needed:

Q: Nurse Jones, your testimony before this court and

jury is that my client was drunk, right? A: I said he was intoxicated.

Q: Intoxicated? A: Yes.

Q: Because of the smell of alcohol. A: That's right. Q: This is something you remember eight years after the fact?

A: Yes, sir.

Q: You must be a careful observer. A: I am.

Q: You didn't chart this observation, did you? A: No, but I remember it distinctly. Q: Well, certainly, as a careful observer with a great memory, you can tell us what percentage of his body was burned.

A: Twenty-five percent. Q: Nice try. Surely, you can tell us which of his hands was so badly burned. A: Right hand.

Q: Wrong again. But you say he was intoxicated be? cause he smelled like it? A: Yes.

Q: You've been to parties haven't you, Nurse Jones? A: Yes.

Q: You've run into people who are drunk, right? A: Yes.

Q: Sometimes, they slur their words? A: Yes.

Q: Sometimes they stumble? A: True.

Q: Sometimes they repeat themselves? A: Right. Q: Sometimes you smell booze on their breath? A: Yes.

Q: You, as a careful observer, if you see someone who is stumbling, mumbling, and smelly, can safely con? clude he's drunk.

A: That's right. Q: But, let's say you're talking to your girlfriend at a

party. A: Okay. Q: She's making sense, clear-eyed, not repeating her?

self, but you smell beer on her breath. To you, she's

drunk, right? A: No.

Q: That wouldn't be fair, would it? A: No.

When contrasted to the plaintiff's forthright testimony that he drank five beers but was not intoxicated, the nurse's

testimony appeared contrived, unfair, and downright false. The car dealer's principal defense was reduced to slinging mud, and the defense lawyers were throwing dirt at a decent man. Despite the obvious difficulty of the case, the jury awarded $6.6 million and reduced the award by only 30

percent for our client's contributory negligence. In this case, our early vision proved to be correct, justify?

ing the $100,000 in case expense. We could not have pre? dicted the defense strategies that paved the way for compel? ling arguments about mudslinging, honesty, and fairness. We could not have foreseen that the nurse who claimed our client was drunk wouldn't even know which hand was disfigured or what percentage of his body was burned. We did know that our client's testimony would never create any credibility issues. What we saw was what the jury got. When it came to

deciding whose theory of the case was more likely correct,




the jurors surely remembered the straightforward, sincere, and honest man who appeared before them. His character put us over the hump.

Hand in hand with character goes another issue on which a

contingency fee lawyer must focus in evaluating a case? motivation for filing suit. A person whose urge to sue is

purely financial will seldom appeal to a jury. Nor will a

plaintiff stimulated by anger and thirst for revenge. But sometimes the call on motivation may be sticky.

For instance, our office interviewed a woman who wanted to file a lawsuit against a pediatrician who cared for her third

child, a boy who died at one day of age in a local hospital's normal newborn nursery. She arrived at our office with the

complete medical chart and a healthy stack of medical litera? ture about Sudden Infant Death Syndrome (SIDS). The at?

tending pediatrician said her son had died of SIDS. The case had already been rejected by well-regarded attorneys who felt that proving a different cause of death would be too difficult to warrant filing a case in which the child had died at such a young age.

This refusal had only served to crystallize our client's resolve. She told us that her son was born with only one obvious deformity, a markedly deviated septum. Her hus? band joked that the infant looked like Rocky Marciano, Jr., but she had been genuinely concerned that the baby would have difficulty breathing.

The pediatrician saw the child at four hours of life and concluded that tests were needed to determine whether his nasal airways were open. Because the baby was doing well, the attending physician left the diagnostic workup to a resi? dent who had only recently graduated from a foreign medical school. The baby was born on a Sunday, so the pediatrician went home after his examination was complete. Twenty-two hours later, the child was found blue and lifeless in the

nursery.

The Right Motivation His mother was convinced that the baby had suffocated in

the nursery. At the interview, she spoke with a reasonable command of the relevant medical issues, even though she was only a high school graduate. We were concerned about her motive for filing the case, because she emphatically believed that the hospital's autopsy was conducted in a man? ner that would have covered up the true cause of death. The

autopsy report itself offered no conclusion about the cause of

death, but on the death certificate, the pediatrician listed the cause of death as SIDS.

At first the client's motivations struck us as paranoid and fantastic. Medical negligence cases are difficult enough to win without adding conspiracy to your burden of proof. Despite our reservations, we sent the case to a neonatologist, who told us that the child likely died as a result of asphyxia, not SIDS. He also said the autopsy was utterly useless in

establishing a cause of death, because the pathologist did not examine the child's head. A later-disclosed autopsy consent form included a handwritten notation that the mother would not consent to an autopsy of the head.

The battle lines on the conspiracy issue were now clearly drawn. The defense would claim that the child's nasal pas? sages did not contribute to asphyxia and argue that the au?

topsy was limited only as a result of the grieving mother's desire for an open-casket funeral. Our client claimed that she was pressured into signing the consent only one hour after

her son had died and that the "don't touch the head" notation was inserted after doctors had assured her that the boy's nose had nothing to do with his death.

Although he was firm in his opinions, our neonatologist alerted us that this would be a difficult case because of the half-baked autopsy and the sparse charting by the nurses.

Based on our investigation, we concluded that we would have to sue the attending pediatrician, at least one resident, and the hospital. Even though the boy lived but 24 hours, the

depositions about the circumstances of his death would

prove to be numerous and lengthy. This analysis posed a crucial question: Considering the degree of opposition we would likely face in this case, did the potential damages warrant our time, energy, and effort?

In our jurisdiction, medical negligence defendants win more than 70 percent of all trials. The road to trial is long, fractious, and costly. The case law that allowed loss of

society to the parents and siblings of decedents was rela?

tively new, and representative jury verdicts were in the

$200,000 range. The economic risk/benefit ratio was not

decisively in favor of accepting the file. But we chose to

pursue the case because the child's mother was a person whose dedication to the investigation of the cause of her son's death might lead a jury to award a record amount of

money damages. At trial, our client proved to be a most resourceful woman.

She sat at the counsel table, and I invited her to assist in

organizing trial exhibits. I consulted her about various testi?

mony, and she often suggested legitimate areas for cross examination. Casual court observers thought she was a para?

legal. Her involvement allowed the jurors to see her level of commitment to the lawsuit. The efficient, determined woman who assisted at the counsel table contrasted nicely with the sweet, maternal woman who later testified regard? ing her loss. The jury returned a verdict three times greater than the final offer.

Each of the cases I have described proceeded to verdict. This is not to suggest that a lawyer should pursue a case to trial merely because a contract has been signed. The investi?

gation and discovery phases of a lawsuit should provide frequent opportunities for case reevaluation. Here are some of the countless reasons for rejecting a previously accepted case: The plaintiff dies of causes unrelated to the lawsuit; the

widow, against all common sense and legal counsel, decides to remarry; the plaintiff is sent to jail on charges that will be admissible at trial; independent witnesses unequivocally tes?

tify at deposition that plaintiff's testimony is false; your own medical expert confides that if asked the proper question, she'll have to testify that your case has "no proximate cause"; your client completely recovers from his injury but refuses to return to work; your permanently disabled client is seen running for a taxi; the hospital finds a lab report that

says your client was legally intoxicated; genetic testing re? veals that a chromosomal abnormality, not malpractice, is

responsible for your client's brain damage; the defense dis? closes that it will call your client's ex-wife as a liability and

damages witness.

In each such instance and in many others, you hear the sound of a barking dog. Generally, if you are wise, you will refuse to let it into your office. If it does get in, you may have to put it out of its misery. Occasionally?very occasion?

ally?you will be able to train it to show at trial. Usually, though, you will be bitten. \D




keeping the dog at bay

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